ATINGA FRAFRA v. THE REPUBLIC [1968] GLR 85

DIVISION: HIGH COURT, SEKONDI

DATE: 31 JANUARY 1968

BEFORE: OWUSU AG. J.

NATURE OF PROCEEDINGS

APPEAL from District Court Grade II, Takoradi, against conviction and sentence for unlawful entry. The facts are sufficiently set out in the judgment.

COUNSEL

Hughes for the appellant.

Forster, State Attorney, for the respondent.

JUDGMENT OF OWUSU AG. J.

The appellant was convicted on his own plea by the District Court, Grade II, Takoradi, of being on premises for an unlawful purpose. The charge against him alleged that he was found on the premises of one Emmanuel Asare Kumi for an unlawful purpose, to wit, stealing. The record of the district magistrate reads: “Accused in dock.

Charge read and explained in Fante.

Plea—Guilty.

Sentence:

Accused is convicted on his own plea and sentenced to six months’ imprisonment with hard labour.”

Against his conviction and sentence he appealed to this court on the following grounds:

“(a) That the sentence is excessive.

(b) That the district magistrate failed to inquire into the facts of the case from the prosecution before proceeding to convict the accused and as such he was disabled from acting on the proviso to section 171 (2) of Act 30 of 1960.” Section 171 (2) of the Criminal Procedure Code, 1960 (Act 30), provides:

“171. (2) If the plea is one of guilty the plea shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1) such letter shall be placed [p.87] of [1968] GLR 85 on the record and the Court shall convict the accused person and pass sentence or make an order against him, unless there shall appear to it sufficient cause to the contrary.”

As it appears on the record, there is no indication whatsoever that the facts of the case and the explanation of the appellant were received by the court. The accused person was not represented and might have pleaded guilty in ignorance; there was, therefore, a duty upon the magistrate to have recorded the facts as contended by the prosecution and also the explanation offered by the accused before exercising the discretion to convict; for the trial magistrate could on the facts have discharged the appellant. There have been several judicial decisions and circulars from his lordship the Chief Justice to the effect that the provisions of section 171 (2) of Act 30 should be strictly adhered to by circuit judges and district magistrates. The failure of a court in summary trials, where the accused person has pleaded guilty, to hear the facts of the case before proceeding to convict disables that court from determining whether or not there is sufficient cause to the contrary: Act 30, s. 171 (2). This court has considered seriously the provisions of section 324 (3) of Act 30 which provides that no appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea. But, as the learned state attorney concedes, a plea of guilty can be re-opened at the appellate court. The court has likewise considered section 406 (1) of Act 30. The section provides:

“406. (1) Subject to the provisions hereinafter contained, no finding, sentence, or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or review on account—

(a) of any error, omission, or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings … under this Code, …. unless such error, omission, irregularity, or misdirection has in fact occasioned a substantial miscarriage of justice.”

Since the facts of the case were not recorded to enable any person to know whether or not they support the charge, and since there was also no record that the accused offered any explanation which really supported or was inconsistent with the plea of guilty, this court is of the opinion that a substantial miscarriage of justice has been occasioned by the failure of the trial magistrate to follow the provisions of sections 171 and 199 of Act 30. [p.88] of [1968] GLR 85

For these reasons the court shall quash the conviction and set aside the sentence. It shall, therefore, enter a plea of not guilty and order a re-trial by the Circuit Court, Takoradi.

DECISION

Appeal allowed.

Conviction quashed.

Re-trial ordered.

F.S.T.